Vaccine Mandate Suffers Another Blow

The 5th Circuit Court of Appeals calls OSHA’s rule “fatally flawed” and a “one-size-fits-all sledgehammer.”

November 15, 2021

covid vaccine

ALEXANDRIA, Va.—The U.S. Court of Appeals for the 5th Circuit handed opponents of the Biden Administration’s COVID-19 vaccine mandate for private businesses with 100 or more employees another short-term win Friday evening, extending the Nov. 6 temporary stay the three-judge panel imposed on enforcement of the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) pending judicial review.

The Biden Administration last week asked the 5th Circuit Court of Appeals in New Orleans to allow implementation and enforcement of the mandate to move forward following multiple challenges brought before the court in BST Holdings vs. Occupational Safety and Health Administration, including a suit filed by NACS and 10 state and national trade associations.

At least 26 states and multiple business groups and labor unions are challenging the ETS in nearly every federal appellate court in the nation. Under a federal appeals court lottery system, all of the cases are expected to be combined into a single case.

The federal appeals court on Friday reaffirmed its initial stay and ordered OSHA not to implement or enforce the mandate until further court order.

Circuit Judge Kurt D. Engelhardt wrote that the mandate, which applies to two out of three private-sector employees in the U.S., “imposes a financial burden” on the litigants “by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests or hit the road.”

OSHA published the ETS Nov. 5. Under the rule, employers with 100 or more employees must ensure that all workers are vaccinated or tested weekly by January or face thousands of dollars in fines per violation. Employees who aren’t vaccinated against COVID-19 must also wear face masks indoors on the job starting Dec. 5. Employees would have to bear the cost of weekly testing.

Judge Engelhardt deemed the mandate “fatally flawed” and “staggeringly overbroad” and said it “exceeds OSHA’s statutory authority.” In a 22-page document, the court questioned OSHA’s stated need for an emergency standard given that the coronavirus pandemic has persisted for nearly two years.

The mandate, Judge Engelhardt said, is both overinclusive—“applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse”—and underinclusive because it takes aim at employers with 100 or more employees citing “grave danger” yet makes “no attempt to shield employees with 98 of fewer coworkers from the very same threat.”

The court notes that OSHA has issued just 10 ETSs in its 50-year history. Six were challenged in court, and only one survived a legal challenge. Citing case law, Judge Engelhardt states that emergency temporary standards are intended to be “delicately exercised” in exceptional circumstances under limited circumstances.

“Rather than a delicately handled scalpel,” the court said, “the Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address.”

The U.S. Department of Justice pledged to “vigorously defend” the ETS, FOX News reports.

NACS has published a memo for NACS members explaining the implications of OSHA’s emergency temporary standard.

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